PETITIONER S OPENING BRIEF

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1 SUPREME COURT, STATE OF COLORADO 2 East 14 th Ave. Denver, CO Telephone: (720) Opinion by the Court of Appeals Case No. 2011CA2141, Fox, J.; Carparelli, J. dissenting. DATE FILED: December 23, :49 PM Appeal from Arapahoe County District Court Case No. 2011CV664, The Hon. Gerald J. Rafferty SARA L. BURNETT, v. Petitioner, STATE OF COLORADO/DEPARTMENT OF NATURAL RESOURCES/DIVISION OF PARKS & OUTDOOR RECREATION, Respondent. Attorneys for Petitioner: Alan G. Molk, #10988 LAW FIRM OF ALAN G. MOLK 8400 E. Prentice Ave., Ste. 420 Greenwood Village, CO Phone: (303) Fax: (303) Amolk@molklaw.com COURT USE ONLY Case No: 2013SC306 Timms R. Fowler, #15983 THE FOWLER LAW FIRM, LLC 155 East Boardwalk Dr., Ste. 300 Fort Collins, CO Telephone: (970) Fax: (970) Timmsf@comcast.net PETITIONER S OPENING BRIEF

2 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with all requirements of C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth in these rules. Specifically, the undersigned certifies that: The brief complies with C.A.R. 28(g). Choose one: It contains 9,306 words. It does not exceed 30 pages. The brief complies with C.A.R. 28(k). For the party raising the issue: It contains under a separate heading (1) a concise statement of the applicable standard of appellate review with citation to authority; and (2) a citation to the precise location in the record (R., p. ), not to an entire document, where the issue was raised and ruled on. For the party responding to the issue: It contains, under a separate heading, a statement of whether such party agrees with the opponent s statements concerning the standard of review and preservation for appeal, and if not, why not. I acknowledge that my brief may be stricken if it fails to comply with any of the requirements of C.A.R. 28 and C.A.R. 32. /s/ Timms R. Fowler Timms R. Fowler ii

3 TABLE OF CONTENTS Page CERTIFICATE OF COMPLIANCE... ii TABLE OF AUTHORITIES... vi - viii I. STATEMENT OF THE ISSUES... 1 II. STATEMENT OF THE CASE... 1 A. Nature of the case... 1 B. Proceedings below... 3 III. STATEMENT OF THE FACTS... 6 IV. PRESERVATION OF ISSUES AND STANDARDS OF REVIEW... 9 V. SUMMARY VI. ARGUMENT A. Introduction B. The purpose and construction of the CGIA C. Structure of the CGIA The waivers for dangerous conditions of public facilities The definition of a dangerous condition is based upon either the physical condition of the facility or the use of the facility D. Assembling and applying the plain text of the CGIA to the stipulated facts proves that the State waived immunity for Burnett s injuries resulting from either the physical condition or use of the park s camping facilities iii

4 1. The text of the waiver uses words and phrases with broad meaning and creates only two stated exceptions Burnett s injuries were caused by an alleged dangerous condition because the trees are part of the campsite s physical condition and Burnett used the camping facilities as intended and in the state that the facilities were provided to her a. Burnett s injuries were caused by the physical condition of Campsite No. 14 as built, situated, and maintained b. How the State situated and maintained Campsite No. 14 relative to the adjacent trees make the trees part of the site and not a natural condition of unimproved property c. Burnett s injuries were caused by using Campsite No. 14 as intended and as the facility was provided to her E. A structural analysis the CGIA reveals that only two exceptions to the recreational waiver exist, the statute does not define what a public facility is regarding parks and recreation areas, and the General Assembly could have narrowed the scope of the recreational waiver or created exceptions for camping facilities, but did not F. The district court and court announcing Rosales erred by not viewing Cherry Creek State Park, its campground, and specifically Campsite No. 14, as being part of a functional system as mandated by the Colorado Supreme Court G. Immunity is waived when a maintenance failure causes objects to intrude upon or interfere with the intended use of any public facility iv

5 H. Rosales is distinguishable from the facts presented here by Burnett, and Rosales is, in part, not well reasoned because the opinion departs from the plain text of the CGIA and principles announced by the Colorado Supreme Court Introduction Rosales is distinguishable from Burnett s case Rosales departs from the plain text of the CGIA VII. CONCLUSION CERTIFICATE OF SERVICE APPENDICES v

6 TABLE OF AUTHORITIES Cases Page(s) Belfiore v. Colorado State Dept. of Highways, 847 P.2d 244 (Colo. App. 1993)... 33, 34 Bertrand v. Board of County Commrs. of Park County, 872 P.2d 223 (Colo. 1994) Burnett v. State, 2013 COA 42, 2013 WL , P.3d (Colo. App. 2013)... 2, 3, 21, 23, 38 City of Colorado Springs v. Powell, 48 P.3d 561 (Colo. 2002)... 21, 23 Estate of Grant v. State, 181 P.3d 1202 (Colo. App. 2008)... 9, 15 Herrera v. City & County of Denver, 221 P.3d 423 (Colo. App. 2009)... 9, 14, 15 Jenks v. Sullivan, 826 P.2d 825 (Colo. 1992) Lovato v. Johnson, 617 P.2d 1203 (Colo.1980) Medina v. State, 35 P.3d 443 (Colo. 2001)... 9, 10, 14, 30-32, 34 Padilla ex rel. Padilla v. School Dist. No. 1 in City & County of Denver, 25 P.3d 1176 (Colo. 2001) Rosales v. City & County of Denver, 89 P.3d 507 (Colo. App. 2004)... 2, 12, 28, vi

7 Schlitters v. State, 787 P.2d 656 (Colo. App. 1990)... 33, 34 Springer v. City & County of Denver, 13 P.3d 794 (Colo. 2000)... 10, 14, 15 State v. Moldovan, 842 P.2d 220 (Colo. 1992)... 14, 28-31, 33, 34 Stephen v. City & County of Denver, 659 P.2d 666 (Colo. 1983) Sweickowski v. City of Fort Collins, 934 P.2d 1380 (Colo. 1997) Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993)... 5 Walton v. State, 968 P.2d 636 (Colo. 1998)... 14, 25 Statutes C.R.S (1)(a)-(d) C.R.S (1)(b) C.R.S C.R.S C.R.S (1.3)... 10, C.R.S (2.5) C.R.S (5.5) C.R.S (5.7) C.R.S vii

8 C.R.S (1) C.R.S (1)(a)-(h) C.R.S (1)(c), (d), and (e)... 15, 16 C.R.S (1)(d) C.R.S (1)(e)... 1, 2, 10, 11, 13, 18, 23, 38, 39 C.R.S (1)(f) C.R.S (1.5)(c)... 18, 26 Other C.R.E. 201(f) MERRIAM-WEBSTER S COLLEGIATE DICTIONARY... 28, 35, 37 viii

9 I. STATEMENT OF THE ISSUES Whether the court of appeals erred in concluding that the government did not waive immunity under (1)(e), C.R.S. (2013), of the Colorado Government Immunity Act, for injuries caused by a tree that fell on a camper in an improved campsite in a state park. II. STATEMENT OF THE CASE A. Nature of the case. This is a personal injury action against the State of Colorado, its Department of Natural Resources, and the Department s Division of Parks and Outdoor Recreation (collectively the State ). Burnett was injured at night, while she was sleeping in her tent, which was pitched on the improved tent pad in the campsite, designated as Campsite No. 14, in Cherry Creek State Park. Campsite No. 14 and the tent pad used by Burnett were nestled in, among, and under a mature stand of cottonwood trees. Four trees are situated around and effectively surround the tent pad used by Burnett, and some of their trunks are within inches of the tent pad as shown in the photographs attached as Appx. 1. One tree is situated between the picnic table and paved/asphalt pad and dirt tent pad. R:12 (Ex. 2 to Complaint [photo of Campsite No. 14 and trees]); R:13 (Ex. 3 to Complaint [photo of limb causing injuries to Burnett]); R:14 (Ex. 4a and 4b to Complaint [photos of designated tent pad situated in, among, and under the trees, 1

10 and of dead branches and a limb that had been previously sawed directly above tent pad]). During the night, which allegedly was not windy or stormy, a large branch fell from one of the overhanging or immediately adjacent cottonwood trees and struck Burnett in the head and neck causing a skull fracture, vertebral fracture, and other acute injuries. The State challenged Burnett s Complaint arguing that the district court lacked subject matter jurisdiction because the State was immune, pursuant to the Government Immunity Act (the CGIA ). The district court granted the motion. The district court concluded that the tree that lost the large branch was not part of a public facility and, therefore, did not constitute a dangerous condition for which the State waived immunity under (1)(e), C.R.S. The district court concluded specifically that under the test announced in Rosales v. City & County of Denver, 89 P.3d 507 (Colo. App. 2004), the subject tree was not integral or essential to the function of a public facility. Therefore, the tree was not part of any public facility and could not constitute a dangerous condition. Burnett appealed, and the court of appeals affirmed on substantially the same grounds. Burnett v. State, 2013 COA 42, 2013 WL , P.3d, (Colo. App. 2013) attached as Appx. 2 (the majority). The Honorable Russell J. Carparelli issued a dissenting opinion. Burnett at (the dissent). 2

11 The majority rejected Burnett s reading of the plain text of the CGIA and her common-sense contention that the campground and Campsite No. 14 should be viewed as functional units when applying the text of the CGIA. Burnett at See also id. at B. Proceedings below. Burnett brought suit against the State. Burnett alleged that she was an invitee to Cherry Creek State Park, camped there on the evening of July 18, 2010, and was injured early in the morning of July 19, R:2-3, Burnett alleged that her injuries were caused by the State s violation of its duties under the Premises Liability Act. Id. Burnett contended that Cherry Creek State Park was a public facility under the terms of the Colorado Governmental Immunity Act. Burnett alleged that the State had waived its sovereign immunity for the injuries she sustained as the result of the limb that fell and struck her, while sleeping in her tent in the improved campsite and on the tent pad provided by the State for that purpose. See Burnett s Complaint at R:1-15. See Appx. 1; R:12, 14. Burnett asserted that the trees immediately adjacent to the designated campsites were integrated into the public facility. R:6, 26. Specifically, Burnett alleged that they were incorporated meaning that the [State park] had incorporated the tree into the public facility in such a manner that it became an 3

12 integral part of the facility and was essential for the facility s intended use. R:6, 26, n. 1. Burnett alleged that the State through its employees, agents, and representatives was aware of the dangerous condition of the trees, meaning the dead branches on trees surrounding the campsites, and that before Burnett was injured, the State had taken precautions to protect the public by trimming the dead branches. R:7, 27. Burnett asserted that the State knew of the danger posed by the cottonwood trees immediately adjacent to the designated campsites and that dead branches falling from the cottonwood trees would pose a danger to campers. R:7, 28. She also alleged that the knowledge of the danger was evident to the State based upon its admitted prior practice to prune or trim the cottonwood trees immediately adjacent to and overhanging the area where Burnett pitched her tent before she was injured. R:7, 28. The State filed a Motion to Dismiss (R:29-37) and argued that it was immune from Burnett s suit under the CGIA (R:31-33). The State specifically asserted that the tree branch constituted a natural condition and, therefore, there was not a dangerous condition existing on the public facility. Absent a dangerous condition, the State argued it was immune. R:

13 Burnett opposed the State s motion arguing that the park was a public facility and the focus of the analysis should not be limited to whether a particular tree within the park is considered a public facility, but rather whether the campsite itself, and specifically Campsite No. 14, including the adjacent trees, should be considered as a public facility. 1 R:47. Burnett and her friend set up a tent on the dirt or gravel tent pad in Campsite No. 14. R:48 (citing of her Complaint). Burnett argued that the trees adjacent to these campsites had been incorporated into the public facility in such a manner that it is an integral part of the facility and it is essential for the facility s intended use. R:49-50 (citing her Complaint at 26). She argued that the trees adjacent to these spaces, and specifically campsite #14, regardless whether [the trees] were planted or existed previously, are for purposes of protection, shade and aesthetic value; and were, prior to the subject incident, maintained by park personnel. R:55. Burnett also pointed out that her Complaint included photographs of the trees adjacent to Campsite No. 14 showing at least one branch had previously been sawed off and removed. R:56 (Appx. 1). Burnett contended that the State must 1 Burnett in her response requested an evidentiary hearing under Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993), to afford the plaintiff the opportunity to establish waiver of Governmental Immunity. R:48. However, Burnett later withdrew her request because the parties agreed to a stipulated set of facts. 5

14 have been aware of the danger from falling branches as evidenced by the steps taken to eliminate the dangerous condition depicted by the branch that had been pruned. Furthermore, according to a statement by a park ranger, the State used to trim and remove dead tree limbs. R:57. Burnett asserted that the State, despite knowing of the danger to campers, made a conscious decision to stop trimming the dead branches. Id. Burnett argued there had been no storm or wind, and she had no way of knowing the campsite specifically designated for overnight camping could lead to severe injury from a falling tree limb. R:57. Burnett contended that contrary to the intent of the Governmental Immunity Statute the State invite[d] members of the public onto its land, charged a fee for entering the land and an additional fee to camp; knowing of the danger of falling tree limbs from cottonwood trees over 70 high; knowing they stopped trimming dead tree limbs; and subjecting unwitting members of the public to be exposed to such dangers. R:57. Nevertheless, the district court granted the State s motion to dismiss and the court of appeals affirmed. III. STATEMENT OF THE FACTS Four trees surround the tent pad, and some of their trunks are within inches of the dirt or gravel tent pad, which is outlined by sunken timbers as shown in the photos attached as Appx. 1. R:12 (Ex. 2 to Complaint [photo of Campsite No. 14 6

15 and trees]); R:14. The parties stipulated that various facts were undisputed for the purposes of the Motion to Dismiss as follows: 1) Plaintiff paid a fee to enter Cherry Creek State Park; 2) Plaintiff was camping in a tent at Cherry Creek State Park in a designated camping area, at an improved campsite, at the time she was injured. The improved campsite is described in Tim Metzger s affidavit at 6 and 8; 3) Plaintiff was injured when her tent was struck by a tree branch; 4) The branch that struck Plaintiff s tent likely fell from a tree adjacent to the improved campsite ; 5) The improved campsite was a public facility within the meaning of the Colorado Government Immunity Act (CGIA); and, 6) Park personnel, or individuals contracted by the Park, had trimmed trees adjacent to the improved campsite on past occasions. R:67 (as set forth in the State s Reply Brief); see also the Order granting the Motion to Dismiss at R:

16 The parties also stipulated that the matters set forth in the Affidavit of Tim Metzger, the Park Manager at Cherry Creek State Park, were undisputed 2 as follows: 4. Cherry Creek State Park is located on land owned by the Army Corps of Engineers and leased by the State of Colorado. The 4,200 acre Park provides opportunities for a wide variety of recreational activities and serves as an important habitat for birds and animals. The Park contains approximately 30 miles of trails, including 15 miles of paved trails. 5. The Park contains thousands of cottonwood trees and other types of trees located in areas frequented by the public. Some trees are located in the Park s campground area The Park contains a designated camping area with 135 campsites, some of which include basic amenities and some of which are full hook-up sites. Full hook-up sites contain the following: a concrete parking pad, a level dirt pad with a picnic table and a fire pit, and electric, water, and sewer connections. All basic campsites contain the following: a parking pad, a level dirt pad with a picnic table and a fire pit[.] 7. Some campsites are flanked by trees with overhanging branches. Some campsites have no adjacent trees. Some campsites have trees with no overhanging branches. Campers with tents can pitch their tents on the level dirt area of the campground site, but they are not 2 The affidavit was attached to the State s Motion to Dismiss and was also attached as Exhibit A to the State s Reply Brief. R:67 (reply citing to affidavit) (Affidavit of Tim Metzger appended at R:73-75). The district court s order also recited the matters deemed to be undisputed. R:

17 restricted to that particular location. Tents are allowed on the concrete pad, on grassy areas near the parking pad or level dirt area, or on areas covered by crushed granite. 8. The campsite used by Sara Burnett on July 19, 2010, is a full hook up campsite. The campsite is flanked by several cottonwood trees. All the trees are mature, and some reach heights of approximately 75 feet. Because the trees are mature, it is likely that all the trees existed at the time the Park was created in None of the trees were planted by Park staff. None of the trees are located on the improved portions of Ms. Burnett s campsite. 9. I examined Ms. Burnett s campsite the day after Ms. Burnett was injured. The foliage created by the trees was fairly dense. Neither I nor any other member of my staff was able to determine the location where the tree branch that struck Ms. Burnett split from a tree adjacent to the camping site. Affidavit of Tim Metzger. R: IV. PRESERVATION OF ISSUES AND STANDARDS OF REVIEW Burnett preserved her arguments in her Response to the State s Motion to Dismiss (R:46-59), as discussed above. The question of whether immunity has been waived under the CGIA is an issue of subject matter jurisdiction for the trial court s determination. Estate of Grant v. State, 181 P.3d 1202, 1204 (Colo. App. 2008); Medina v. State, 35 P.3d 443, 452 (Colo. 2001). Whether the trial court had subject matter jurisdiction for a claim under the CGIA is a question of statutory interpretation that we review de novo. Herrera v. 9

18 City & County of Denver, 221 P.3d 423, 425 (Colo. App. 2009). An appellate court will not disturb the trial court s findings of jurisdictional fact unless they are clearly erroneous. Medina, 35 P.3d at 452; Springer v. City & County of Denver, 13 P.3d 794, 799 (Colo. 2000). However, if all relevant evidence is presented to the trial court, and the underlying facts are undisputed, the trial court may decide the jurisdictional issue as a matter of law, in which case appellate review is de novo. Medina, 35 P.3d at 452; Springer, 13 P.3d at 799. V. SUMMARY The General Assembly waived immunity for Burnett s injuries. Based upon the totality of the circumstances, waiver exists because Burnett s injuries fall within the purview of the recreational waiver created by (1)(e). The text of the waiver depends upon the definition of a dangerous condition, (1.3), which includes either the physical condition of a public facility or the use of a public facility that may pose an unreasonable risk to the public. Burnett s injuries fall within the scope of the recreation waiver and both definitions of a dangerous condition for three reasons. First, the trees constitute part of Campsite No. 14 and its physical condition. As the campsite was built, situated, and maintained, the trees became part of the 10

19 campsite. The photographs of the campsite are compelling and depict that the campsite and its facilities are nestled in, among, and under the trees. See Appx. 1. The State admittedly pruned or trimmed the adjacent trees, but stopped that maintenance before Burnett was injured. Accordingly, Burnett s injuries fall within the scope of the waiver and definition of a dangerous condition based upon the physical condition of a recreational facility. Second, Burnett s injuries do not fall within the purview of the stated exception to the recreational waiver for injuries caused by the natural condition of any unimproved property set forth by (1)(e). The trees apparent natural condition was altered by the State s placement of a highly improved campsite under their canopy, over their roots, and within inches of their trunks. See Appx. 1. Therefore, the cottonwood trees ceased to be in their natural condition. As the campsite was built, situated, and maintained in, among, and under the trees, it is located on improved rather than unimproved property. See id. The State admitted maintaining the trees by pruning them, which further altered their natural condition as depicted. Appx. 1 (R:14 [Ex. 4b to Complaint]). Previous to Burnett s injuries, the trees were maintained by the State as part of the campground and campsite. Thus, the trees ceased to be merely a natural condition of unimproved property. Accordingly, Burnett s injuries were caused by the 11

20 physical condition of the Campsite No. 14 and not a natural condition of unimproved property. Third, Burnett s injuries fall within the purview of the recreational waiver and definition of a dangerous condition because she was injured using the campground and Campsite No. 14 as intended and in the state in which those facilities were provided to her. Burnett was camped at night in the highly improved campsite on a tent pad as provided for such use, and these facilities were situated in, among, and under the cottonwood trees. Accordingly, Burnett s injuries fall within the meaning of the second definition of a dangerous condition regarding the use of a recreational facility. The district court and majority, however, viewed the evidence and text of the CGIA too narrowly. The courts erred by concluding that the trees constituted a natural condition of unimproved land. Finally, the district court and majority erred by following the test announced in Rosales. The test was applied too narrowly because the State had incorporated the trees into the subject campsite, as the photographs and stipulated facts reveal, and the dissent illuminates that error. Second, the Rosales test is too restrictive and is not supported by the plain text of the CGIA, which is illuminated by the dissent as well. Rosales should be distinguished, if not disapproved outright. 12

21 VI. ARGUMENT A. Introduction. The photographs show that the cottonwood stand is part of Campsite No. 14, and the trees are part of the campground as well. Common sense would so dictate. Therefore, the trees are part of a public recreational facility for which immunity is waived, pursuant to (1)(e), and are not the natural condition of unimproved property, which is an exception to that waiver. Considering the totality of the circumstances, 3 the plain text of the CGIA, 4 the structure of the CGIA overall, 5 and this Court s directives to construe immunity waivers broadly and exceptions narrowly, 6 the dismissal of Burnett s Complaint is erroneous. 3 In enacting a statute, the General Assembly intends a just and reasonable result and one that is feasible, which thereby mandates a practical result as well. See C.R.S (1)(a)-(d). These sweeping directives beckon consideration of the totality of the circumstances. 4 Also, [a]ll general provisions, terms, phrases, and expressions, used in any statute, shall be liberally construed, in order that the true intent and meaning of the general assembly may be fully carried out. C.R.S Accordingly, the plain and ordinary meaning of the words chosen by the General Assembly should govern and be liberally construed to fully carr[y] out the General Assembly s true intent. See id. 5 Finally, the entire statute is intended to be effective. C.R.S (1)(b). 6 See C.R.S

22 B. The purpose and construction of the CGIA. [T]he purpose of the CGIA is to allow Colorado s law of negligence to operate against governmental entities, except to the extent that it has barred suit against them. Springer, 13 P.3d at 803. One of the basic purposes of the CGIA is to allow a person to recover for personal injuries caused by a public entity. Herrera, 221 P.3d at 425. [W]hile on the one hand the purpose of the CGIA is to protect the public against unlimited liability and excessive fiscal burdens, its purpose on the other hand, is to allow the common law of negligence to operate against governmental entities except to the extent it has barred suit against them. Medina, 35 P.3d at 453 (quoting Walton v. State, 968 P.2d 636, 643 (Colo. 1998)). This balance is for the legislature alone to reach. This history of, and policy behind, the CGIA informs our analysis of the issue before us. Medina, 35 P.3d at 453. Strict construction of the scope of legislatively created immunity is consistent with one of the basic but often overlooked purposes of the Governmental Immunity Act that is, to permit a person to seek redress for personal injuries caused by a public entity. State v. Moldovan, 842 P.2d 220, 222 (Colo. 1992). The state s immunity must be strictly construed because the act derogates the common law. Herrera, 221 P.3d at 425; Sweickowski v. City of Fort Collins, 934 P.2d 1380, (Colo. 1997). 14

23 Waivers are construed broadly to effectuate their intended goals. Herrera, 221 P.3d at 425 (citing Springer, 13 P.3d at 803). We broadly construe these provisions waiving immunity in the interest of compensating victims of governmental negligence, but construe the exceptions to these waivers strictly because the ultimate effect of the exceptions is to grant immunity. Estate of Grant, 181 P.3d at C. Structure of the CGIA. 1. The waivers for dangerous conditions of public facilities. The CGIA contains eight waivers pertaining to different subjects. 7 See (1)(a)-(h). Each waiver pertains either to the operation of certain public facilities or the existence of a dangerous condition of various public facilities. Sections (1)(a), (b), (f), (g), and (h) set out the five operationally based waivers, but none are at issue here. Sections (1)(c), (d), and (e) set out the three waivers based upon a dangerous condition of certain public facilities as follows: (c) A dangerous condition of any public building; (d) (I) A dangerous condition of a public highway, road, or street. (e) A dangerous condition of any public hospital, jail, public facility located in any park or recreation area 7 Section is attached as Appx. 3, and as Appx

24 maintained by a public entity, or public water, gas, sanitation, electrical, power, or swimming facility. Nothing in this paragraph (e) or in paragraph (d) of this subsection (1) shall be construed to prevent a public entity from asserting sovereign immunity for an injury caused by the natural condition of any unimproved property, whether or not such property is located in a park or recreation area or on a highway, road, or street right-of-way. C.R.S (1)(c), (d), and (e) (emphasis added). Accordingly, the recreation waiver applies to injuries caused by a dangerous condition of any public facility located in any park or recreation area maintained by a public entity. That waiver, however, must be read with the definition of a dangerous condition, and the structure of the CGIA overall to give effect to the plain text. 2. The definition of a dangerous condition is based upon either the physical condition of the facility or the use of the facility. The CGIA expressly defines a dangerous condition related to the waiver provisions regarding any... public facility located in any park or recreation area. Section (1.3) states: Dangerous condition means either a physical condition of a facility or the use thereof that constitutes an unreasonable risk to the health or safety of the public, which is known to exist or which in the exercise of reasonable care should have been known to exist and which condition is proximately caused by the negligent act or omission of the public entity or public employee in constructing or maintaining such facility... 16

25 C.R.S (1.3) (emphases added). Reading the plain text of the recreation waiver with the definition of a dangerous condition and considering the statutory structure of the CGIA reveal the General Assembly s intent to waive immunity for Burnett s injuries. D. Assembling and applying the plain text of the CGIA to the stipulated facts proves that the State waived immunity for Burnett s injuries resulting from either the physical condition or use of the park s camping facilities. 1. The text of the waiver uses words and phrases with broad meaning and creates only two stated exceptions. The General Assembly chose words and phrases with broad meaning to create the waiver, but set forth only two stated exceptions for injuries caused either by the natural condition of any unimproved property or a backcountry landing facility as explicitly defined. The pertinent text of the recreation waiver and the definition of a dangerous condition, when assembled with the two exceptions, provides as follows: Sovereign immunity is waived by a public entity in an action for injuries resulting from: 8 A Dangerous condition... mean[ing] either a physical condition of a facility or the use thereof that constitutes an unreasonable risk to the safety of the public which condition is proximately caused by the negligent act or 8 C.R.S (1). 17

26 omission of the public entity in constructing or maintaining such facility 9 of any public facility located in any park or recreation area maintained by a public entity 10 Nothing in this paragraph (e) shall be construed to prevent a public entity from asserting sovereign immunity for an injury caused by the natural condition of any unimproved property, whether or not such property is located in a park or recreation area. 11 The waiver of sovereign immunity created in paragraph (e) of subsection (1) of this section does not apply to any backcountry landing facility located in whole or in part within any park or recreation area maintained by a public entity. For purposes of this paragraph (c), backcountry landing facility means any area of land or water that is unpaved, unlighted, and in a primitive condition and is used or intended for the landing and takeoff of aircraft, and includes any land or water appurtenant to such area. 12 (Emphasis added.) 2. Burnett s injuries were caused by an alleged dangerous condition because the trees are part of the campsite s physical condition and Burnett used the camping facilities as intended and in the state that the facilities were provided to her. The parties stipulated that Burnett had paid a fee to enter Cherry Creek State Park. R:67. They agreed that the improved campsite she used was a public facility within the meaning of a CGIA. Id. The branch that struck Burnett and 9 C.R.S (1.3). 10 C.R.S (1)(e). 11 The language from C.R.S (1)(e) narrowing the waiver and increasing the scope of immunity must be strictly construed. 12 C.R.S (1.5)(c). 18

27 her tent likely fell from a tree adjacent to the improved campsite. Id. The park contains a designated camping area with 135 sites, some of which include basic amenities and some which are full-hookup sites. Id. Campsite No. 14 was a full-hookup site which contained a concrete parking pad, a level dirt pad with picnic table and fire pit, and electric, water, and sewer connections. R: Campers with tents can pitch their tents on the level dirt area of the campground site, but they re not restricted to that particular location. R:73-75, 8. Tents are allowed on the concrete pad, on grassy areas near the parking pad or level dirt area, or on areas covered by crushed granite. R:73-75, 7. Here, Campsite No. 14 used by Burnett was a full-hookup campsite. R:73-75, 8. The campsite is flanked by several cottonwood trees. R:73-75, 8. None of the trees are located on the improved portions of Ms. Burnett s campsite. R:73-75, 8. The precise location from where the branch split and fell striking Burnett was not determined. R:73-75, 9. Nevertheless, she was struck by a branch from a tree adjacent to the campsite and sufficiently close to cause her injuries. See id. 19

28 a. Burnett s injuries were caused by the physical condition of Campsite No. 14 as built, situated, and maintained. The physical condition of the Campsite No. 14 includes the adjacent and overhanging cottonwood trees. The CGIA does not provide any explicit definition or limit on what constitutes the physical condition of a facility and does not define what constitutes a public facility with regard to a park or recreational area. Here, the pictures of Campsite No. 14 are compelling and the stipulated facts establish that the State built, situated, maintained, and provided this improved campsite in, among, and under the cottonwood trees from which the branch fell injuring Burnett. See Appx. 1 (the photographs) and the stipulated facts. In short, the State placed the improved campsite among the trees and in such close proximity that the trees are a part of this particular campsite. Whether other campsites were nestled among and under a stand of cottonwood trees is irrelevant, because only Burnett s use of Campsite No. 14 is at issue here. Although Burnett stipulated that [n]one of the trees are located on the improved portions of Ms. Burnett s campsite per se (R:75, 8), that does not mean the trees were not part of the site, did not constitute part of the site s physical condition, or did not impact the state of the campsite. See Padilla ex rel. Padilla v. School Dist. No. 1 in City & County of Denver, 25 P.3d 1176, 1181 (Colo. 2001) (a defect also includes other physical conditions that the governmental entity creates 20

29 in association with constructing or maintaining a facility ). Burnett, dissent at Because the tree trunks were within inches of the campsite s improvements and the trees canopy reached over the site, the trees are part of the site and certainly part of its physical condition. Undoubtedly, the trees roots pass underneath the improved campsite as well. 13 As Burnett contended on appeal and the dissent explains, to conclude the trees are not effectively part of the campsite facilities because the trunks are not surrounded by some man-made improvement is contrary to common sense as well as the purpose, intent, and text of the CGIA. Burnett, dissent at 49-50, Nothing in the CGIA precludes a natural feature from being incorporated into a facility especially where the natural feature runs under, around, and over the man-made improvements. See City of Colorado Springs v. Powell, 48 P.3d 561, 566 (Colo. 2002) ( The city seeks to narrow the scope of section (1)(f) to negligence regarding the concrete flume through which the water runs. Such a narrow view disregards the reality that areas immediately surrounding a facility often affect the overall condition of the facility. ). The concept that the area 13 The location of the roots were not part of the record, however, given the number of trees surrounding the tent pad, judicial notice may be taken. [J]udicial notice may be taken at any stage of a proceeding, whether in the trial court or on appeal. Lovato v. Johnson, 617 P.2d 1203, 1204 (Colo.1980); C.R.E. 201(f). 21

30 surrounding a facility can give rise to a dangerous condition is further discussed below regarding intrusion of an object onto or into a facility (Section G). Here, the State stipulated that Campsite No. 14 was an improved, public facility. R:67; 74, 6; 75, 8. Viewing Campsite No. 14 as a functional unit or functioning facility, the trees visibly are incorporated into the campsite. Furthermore, the trees certainly are located with the bounds of the campground itself. The State stipulated that the park contained a designated camping area. R:74, 6. Moreover, the State stipulated that Plaintiff was camping in a tent at Cherry Creek State Park in a designated camping area at an improved campsite, at the time she was injured. R:67, 2. Some trees are located in the Park s campground area.... The Park contains a designated camping area with 135 campsites, some of which include basic amenities and some of which are full hook-up sites. R:74, 5-6. Accordingly, the trees are part of the campground facilities and are located on improved property when viewed at the campground level. The impact of the trees on the physical condition of Campground No. 14 is further established because the State stipulated that the branch which struck Burnett fell from an adjacent tree. R:67, 4; 74, 7; 75, 9. If the trees were remote and not part of this campsite, Burnett could not have been injured by the trees when using the site. The mechanism of injury includes the trees as a causal 22

31 factor. See Powell, 48 P.3d at 566; Section G. The trees affected the physical condition of Campsite No. 14 as an improved camping facility. Therefore, Burnett s injuries fall within the recreational waiver and are part of the Campsite No. 14 s physical condition even if the trees trunks are not located precisely within an improvement. Burnett, dissent at 66. The trees and campsite improvements comprise one functional camping facility as built, situated, and maintained. b. How the State situated and maintained Campsite No. 14 relative to the adjacent trees make the trees part of the site and not a natural condition of unimproved property. Burnett s injuries do not fall within the purview of the stated exception to the recreational waiver for injuries caused by the natural condition of any unimproved property set forth in (1)(e). The trees apparent natural condition was altered by the State s placement of a highly improved campsite under their canopy, over their roots, and within inches of their trunks. Trees do not naturally nestle themselves around, under, and over a highly improved campsite. Therefore, the cottonwood trees ceased to be in their natural condition. Furthermore, as the campsite was built, situated, and maintained in, among, and under the trees, the trees are located on improved rather than unimproved property as a practical matter. Again, although Burnett stipulated that the tree trunks were not located on an improved portion of her campsite per se, that does not mean the trees are not situated or so proximate to the improvements to be 23

32 located on improved rather than unimproved property. The trees are located within the designated 135-site campground itself, which is itself a public facility. Hence, the trees are located on improved property. The State also admitted that it had maintained the trees by pruning them (R:67, 6), which altered their natural condition. They were pruned or trimmed and thereby maintained by the State as part of the campground and campsite. See id. The trees ceased to be a natural condition because of such maintenance. Accordingly, Burnett s injuries were caused by the physical condition of the Campsite No. 14 and not a natural condition of some unimproved property. c. Burnett s injuries were caused by using Campsite No. 14 as intended and as the facility was provided to her. The General Assembly waived immunity for Burnett s injuries because she was injured while using the campground facilities precisely as intended by the State. Burnett was injured at night while sleeping in her tent that was pitched in the campground, specifically in Campsite No. 14, which was highly improved. Her tent was pitched on a pad as nestled in and among the cottonwood grove. Accordingly, Burnett s injuries are the direct result of using the facilities of Campsite No. 14 as the State intended that they be used. Burnett was using the campground, specifically Campsite No. 14, as they were provided to her. She was injured doing what the State invited her to do camp beneath the trees and sleep there at night. 24

33 Burnett s injuries did not arise from a rogue, third-party intervening tortfeasor as in Jenks v. Sullivan, 826 P.2d 825, 827 (Colo. 1992), overruled in part on other grounds by Bertrand v. Board of County Commrs. of Park County, 872 P.2d 223, 227 (Colo. 1994). In Jenks, the use of the facility involved a shooting, which was not an intended use and had nothing to do with any aspect of the state of the building itself. Therefore, the use of the building could not constitute a dangerous condition. Jenks and its progeny are not controlling here involving Burnett s use of the campsite. Burnett used the site precisely as intended. She also used the campsite in the state in which it was provided to the public. Jenks indicates that the use need only be related to the state of a public facility to constitute a dangerous condition. This Court has noted that the linchpin of our use inquiry under Jenks is that the statute refers to an injury arising from the state of the building itself or the use of a state of the building. Walton, 968 P.2d at 645 (quoting Jenks, 826 P.2d at 827). Here, the proximity of the trees impacted the state of the subject camping facility. Certainly, the canopy towering above the campsite impacted the state of the site and its use. Therefore, Burnett s use falls within the second definition of a dangerous condition based on the use of a public facility that allegedly poses an unreasonable risk of harm. 25

34 E. A structural analysis the CGIA reveals that only two exceptions to the recreational waiver exist, the statute does not define what a public facility is regarding parks and recreation areas, and the General Assembly could have narrowed the scope of the recreational waiver or created exceptions for camping facilities, but did not. A review of the structure of the CGIA supports Burnett s reading of the statute s plain text and the dissenting opinion. First, the CGIA provides only two stated exceptions to the recreation waiver. First is the exception regarding backcountry landing facilities, but that exception has no application here. The second exception, of course, is for the natural condition of unimproved property. That exception is inapplicable, as discussed above. The existence of those two exceptions demonstrates that the General Assembly could have limited the scope of the recreational waiver or created explicit exceptions for campgrounds or campsites, but did not do so. Second, the General Assembly carved out an exception from the recreational waiver for backcountry landing facilities, but did not do so with regard to camping facilities. In carving out that exception, however, the General Assembly expressly included appurtenant natural features, including any land or water appurtenant to such area (1.5)(c). The provision creating the exception specifically identifies and includes land appurtenant to such area, and, therefore, an inference may be drawn that appurtenant land would otherwise 26

35 be included in the waiver when not explicitly excluded. Therefore, the tree trunks adjacent to or appurtenant to Campsite No. 14 are included in the waiver. In any event, applying the ordinary meaning of the recreational waiver s text is consistent with the General Assembly s word choice and the CGIA s structure. The General Assembly could have narrowed the scope of the recreational waiver or created an explicit exception regarding campsites or camping facilities, but did not do so. The third structural aspect of the CGIA that lends support to Burnett s reading of the plain text is the fact that the General Assembly did not define what constitutes a public facility relative to parks and recreation areas. In contrast, the General Assembly has explicitly defined what constitutes a public facility with regard to sanitation and water treatment. In response to an opinion issued by this Court, the General Assembly stepped in and defined explicitly what does and does not constitute a public sanitation facility. See (5.5). Similarly, in response to another opinion issued by this Court, the General Assembly amended the CGIA to define explicitly what does and does not constitute a public water facility. See (5.7). These definitions clarify and limit the scope of what constitutes a public facility in those two specific contexts. 27

36 Here, however, the General Assembly has not done so with regard to public facilities in parks and recreation areas. Accordingly, the plain text and ordinary meaning of the expansive phrase public facility applies in the context of a park and recreation area. Absent some limiting definition provided by the General Assembly, facility 14 should be given its ordinary and broad meaning, which includes Campsite No. 14, its physical condition, its use, and physical state as it was built, situated, and maintained in, among, and under the cottonwood trees. F. The district court and court announcing Rosales erred by not viewing Cherry Creek State Park, its campground, and specifically Campsite No. 14, as being part of a functional system as mandated by the Colorado Supreme Court. Any purportedly natural features should be viewed with the man-made features in a unified and functional way. Here, the district court failed to consider the campground, or specifically Campsite No. 14, as a functional system used to facilitate and promote the purpose of overnight camping. The district court, here, and the Rosales Court improperly failed to adhere to the analyses prescribed by and holdings announced by this Court. When construing a waiver pertaining to a dangerous condition of a public facility, the facility must be viewed as a functional system. See Moldovan, MERRIAM-WEBSTER S COLLEGIATE DICTIONARY defines the word to mean (a)(1): something that makes an action, operation, or course of conduct easier usually used in plural <facilities for study> [and/or] b: something (as a hospital) that is built, installed, or established to serve a particular purpose. 28

37 P.2d at Moldovan analyzed the previous holding in Stephen v. City & County of Denver, 659 P.2d 666, 668 (Colo. 1983). In Stephen, the Court held that government immunity had been waived because the stop sign constituted a dangerous condition which interfered with the movement of traffic although the sign itself was not physically interfering with the movement of traffic or located on the travel portion of the highway. Moldovan, 842 P.2d at Stephen evaluated the provisions granting the waiver for public roads and highways, pursuant to (1)(d), and based on the plain text concluded that the legislative emphasis on maintenance of roads and highways in a condition that promotes the safe movement of traffic reflects concern that those facilities function in a way consistent with that purpose. Stephen, 659 P.2d at 668 (emphasis added); Moldovan, 842 P.2d at 224. Quoting Stephen, Moldovan further explained that: The necessity of stop signs to regulate traffic flow in the interest of public safety needs no elaboration. Viewing a road and street system functionally, it is apparent that stop signs are integral parts of roads and highways. We believe that to construe dangerous condition to be limited to the physical condition of the road surface gives too cramped a reading to the statute and ignores the purpose for which this exception to sovereign immunity was created. Stephen, 659 P.2d at 668; Moldovan, 842 P.2d at

38 The General Assembly responded and amended the provision to exclude traffic signs, signals and markers in order to nullify the Supreme Court s decision in Stephen. Moldovan, 842 P.2d at 224. However, as critical here, the court in Moldovan further stated that despite that nullification in Stephen: It does not follow from these amendments, however, that a dangerous condition on a public highway that physically interferes with the movement of traffic on the paved portion of the highway is limited only to those dangerous conditions that have their physical source in the highway surface itself. Such a construction, in our view, cannot be squared with the statutory text adopted by the General Assembly in Moldovan, 842 P.2d at 224. See Medina, 35 P.3d at 458. In Medina, the Court explained that the subject highway was built without shoulders, without ditches, and with very steep highway clearance rock cuts. Inherent in such a design is a risk of rocks dislodging from the cut slope and striking vehicles traveling below. Medina, 35 P.3d at 460 (the slopes were cut and altered, and not in their natural condition). In the instance case, the State admitted that Campsite No. 14 is a highly improved site. It contains amenities including electrical hookup, utility hookup, and sewer hookup, along with a parking area, picnic table, and improved tent pad for camping. Obviously as built and situated, the campsite and its amenities were man-made improvements incorporating and placing the tent pad under and in direct proximity to the cottonwood trees from which the branch fell injuring Burnett. 30

39 Having laid out, built, and improved Campsite No. 14, as the State admits it did, it placed campers at risk to be injured by tree limbs falling upon them from the trees. This is similar to the cow wandering onto the roadway surface in Moldovan and the boulder tumbling down onto the roadway striking the claimant s car in Medina. It is a failure to maintain the surrounding area that is sufficiently proximate to the man-made facilities to cause injury that gives rise to a waiver. This is true when the facility is properly viewed as a functional system. The State admits performing maintenance on the trees in the campground by pruning them. The State sufficiently incorporated the trees into the campground facility, and specifically the facilities of Campsite No. 14, to warrant maintenance. The State presumably would not trim or prune the branches of trees in their natural condition on unimproved property. Accordingly, the facts establish that Burnett s injuries were caused by using the improved property and man-made features of the campground, and specifically Campsite No. 14, as intended and as invited by the State. Thus, an object intruded into or upon the man-made improvements of the campsite, here the tent pad, causing injury to Burnett. See Moldovan; Medina, 35 P.3d at The Court in Medina stated that the real question is whether the plaintiffs injuries were solely attributable to the risk of rocks falling inherent in the original design of the slope or whether their injuries were at least partly attributable to an 31

40 increase in the risk of rocks falling that developed over time as a result of lack of maintenance. Medina, 35 P.3d at 460. Here, Burnett was injured not merely because of the risk posed by a falling branch inherent in the original design and layout of the campground and Campsite No. 14, but her injuries were at least partly attributable to an increase in the risk of branches falling that developed over time as a result of lack of maintenance. Id. The State admits, and one photograph shows, that the branches of trees adjacent to the campsites had been pruned in the past, but the State admittedly ceased such maintenance. The undisputed facts and admissions by the State establish that maintenance and pruning had been done on these adjacent trees for some time prior to the injuries sustained by Burnett. Accordingly, the State waived its sovereign immunity with regard to the injuries sustained by Burnett. G. Immunity is waived when a maintenance failure causes objects to intrude upon or interfere with the intended use of any public facility. With regard to causation, the State waived immunity by creating the dangerous condition whereby Burnett was hit by a falling tree branch, while sleeping on the tent pad provided by the State. Burnett was not hit by a limb falling from a tree while merely hiking through the park and no such issue need be decided here. Burnett was invited to use, and did use, the campground, Campsite 32

41 No. 14, and its tent pad as the State had intended and as the facilities had been provided. Her use was of an extended duration, meaning overnight, while her vigilance was relaxed consistent with the intended use of the tent pad for sleeping. This Court need not decide whether waiver exists where a visitor frolics in a meadow, passes a lone tree in an unimproved portion of the park, and is hit by a falling branch. Burnett s case is different. This Court and the court of appeals have held repeatedly that when objects intrude upon or interfere with the intended use of a public facility, even when the intrusion emanates from an area adjacent to the facility, waiver exists. In Moldovan, the state allowed a right-of-way fence to fall into disrepair, which in turn enabled a cow to run onto the highway, thereby creating a dangerous condition that physically interfered with the movement of traffic and caused serious injuries to Moldovan as he traveled on the paved portion of the highway. The same is true here, where Burnett was using the improved campsite situated in and among a stand of cottonwood trees when she was injured by the falling branch. The Colorado court of appeals has likewise concluded that rocks falling onto roadways from adjacent areas constitute a dangerous condition. Schlitters v. State, 787 P.2d 656, 658 (Colo. App. 1990); Belfiore v. Colorado State Dept. of Highways, 847 P.2d 244 (Colo. App. 1993) (similar result). 33

42 In Moldovan, Medina, Schlitters, and Belfiore, the waiver pertained to foreign objects intruding upon and interfering with the use of the traveled portion of a highway. Here, however, the State situated the tent pad immediately next to and underneath a stand of mature cottonwood trees, which allegedly created an unreasonable risk of injury from falling branches. However, that risk was enhanced by, and Burnett s injuries were caused by, the State s wholesale failure to maintain, or at least continue to prune, the adjacent and admittedly 70-year-old trees, leading to their deterioration over time. See (2.5) (maintenance is the act or omission of a public entity in keeping a facility in the same general state of repair or efficiency as initially constructed or in preserving a facility from decline or failure. ) (emphasis added). H. Rosales is distinguishable from the facts presented here by Burnett, and Rosales is, in part, not well reasoned because the opinion departs from the plain text of the CGIA and principles announced by the Colorado Supreme Court. 1. Introduction. First, the division announcing Rosales v. City & County of Denver, 89 P.3d 507 (Colo. App. 2004), did not view or even consider the picnic table, tree, and surrounding area as a functional system as the Colorado Supreme Court has held and directed. This is evident from the discussion set forth in the opinion and its lack of consideration for the analysis presented in Moldovan, Medina, and other cases discussed above. 34

43 Second, the division in Rosales did not discuss how the text of the CGIA was to be construed. The opinion construed the phrase any public facility narrowly, which constitutes error. Moreover, the opinion rests on the division s novel construction of the CGIA, which departs from the plain text and ordinary meaning of the words chosen by the General Assembly. The word facility denotes facilitation of some use or purpose not merely fabrication by man or woman. The division in Rosales ignored the plain meaning of facility despite quoting MERRIAM-WEBSTER S COLLEGIATE DICTIONARY. Third, here, the district court rejected Burnett s argument that her case was distinguishable from Rosales and failed to appreciate the distinguishing facts. The district court did not appreciate that the State admitted that the campground was an improved facility and specifically Campsite No. 14 was an improved site. Campsite No. 14 is an improved site and constitutes a functional unit within the larger campground facility itself. The State integrated cottonwood trees into the facilities of both Campsite No. 14 and the designated campground. 2. Rosales is distinguishable from Burnett s case. The evidence and allegations presented by Burnett and the undisputed facts establish that the trees were not simply a natural feature located nearby, but indeed were part of Campsite No. 14 as a functional system. Moreover, the trunks of the mature cottonwood trees were located within inches of admittedly improved 35

44 property, the trees canopy hung over the improved property itself, and their roots ran under the improved property. The nature and extent of the improvements at Campsite No. 14 are markedly greater and of a different nature than the existence of the mere picnic table in Rosales. Campsite No. 14 was designed, built, and maintained to provide for overnight camping with amenities such as electricity, sewer hookup, and a designated tent pad. As such, Campsite No. 14 was an improved public facility in and of itself. The campsite was also part of the campground, which is a public facility improved by the State. As such, both the campground and specifically Campsite No. 14 used by Burnett fall squarely within the plain text of the waiver for park and recreation facilities, as discussed above. The trees were integral to Campsite No. 14. The fact that some campsites did not have trees is irrelevant. A tree need not be integrated into every campsite to be considered part of one specific campsite or part of the campground facilities overall. The district court s reasoning in this regard was narrow and misplaced as was the Court s reasoning in Rosales, which did not take a functional approach. Although the district court ignored the fact that a fee was charged to use the improved full hook-up Campsite No. 14, the fact a fee was charged is further evidence that the State was managing and maintaining the improvements and campground facility with the camping fees collected. No fee was at issue in 36

45 Rosales. The division in Rosales was not presented with any of the undisputed facts presented here proving that the property was highly improved or that the tree or trees involved had been maintained. The existence of a picnic table in Rosales does not rise to the level of improvement of the campground and Campsite No. 14 presented here. 3. Rosales departs from the plain text of the CGIA. Both the district court in this case and the division in Rosales took a narrow view of and misconstrued the plain text of the CGIA. In Rosales, the Court relied on its own inferences in concluding that the tree involved there was not, as a matter of law, part of a public facility. Despite relying on a common and ordinary definition of the word facility from MERRIAM-WEBSTER S COLLEGIATE DICTIONARY, the Court ignored an important part of that definition. The court set forth the definition from MERRIAM-WEBSTER S COLLEGIATE DICTIONARY stating that the common meaning of facility is something (as a hospital, machinery, plumbing) that is built, constructed, installed, or established to perform some particular function or to serve or facilitate some particular end. Rosales, 89 P.3d at 509 (emphasis added). Nevertheless, when the Rosales Court applied the definition, it ignored the reference to something that is established to perform some particular function or to serve or facilitate some particular end. The word facility, as defined by MERRIAM-WEBSTER S COLLEGIATE 37

46 DICTIONARY, does not impose a requirement that the facility necessarily be fabricated. A facility can be established. In common parlance, most parks and recreations areas are established or as the Park Ranger testified, the Park was created in R:75, 8. The State established the improved facilities of Campsite No. 14 and the 135-site campground and maintained these public facilities in, among, and under cottonwood trees. No requirement is set forth in (1)(e) that limits the waiver of immunity only for fabricated or manufactured features of a park or recreation area. The General Assembly used the broad phrase any public facility as the unit of measure to define where a dangerous condition that triggers a waiver of immunity. Any public facility must be construed broadly, and the use of any is all inclusive. The two-prong test announced by Rosales that a feature must be integral and essential to a specific function of a facility finds no support in the text or plain meaning of any provision of the CGIA. Burnett, dissent at 34, 68. The language of (1)(e) providing that the natural condition of any unimproved property is subject to immunity indicates that a natural condition or feature of improved property, such as the cottonwood trees surrounding Campsite No. 14, are included within the public facility. Campsite No. 14 and its tent pad are admittedly improvements to the property upon which the cottonwood trees are situated. Thus, the cottonwood trees towering over, rooted under, and 38

47 surrounding Campsite No. 14 fall within the purview of the waiver set forth by (1)(e). VII. CONCLUSION The photographs of Campsite No. 14 depict that the tree trunks adjacent to that improved campsite are part of the campsite. The campsite is situated in, among, and beneath the trees. They surround the improved tent pad. The trees trunks are within inches of the campsite s improvements. The trees also impact the condition and use of the campsite as a facility. The trees are also part of the campground itself. As such, the trees are part of two public facilities, and the recreational waiver applies to Burnett s injuries. The State waived its immunity for Burnett s injuries because the State failed to maintain the trees as it had in the past, which in turn caused a limb to fall and strike Burnett. At the time, she was sleeping on the improved tent pad of Campsite No. 14, as the use was intended, and as the camping facilities were provided to her. The district court and the majority viewed the evidence too narrowly. They also read the text of the recreational waiver too narrowly. The courts frustrated the General Assembly s intent to waive immunity for members of the public injured by dangerous conditions while using public recreational facilities. Therefore, dismissal of Burnett s Complaint and the court of appeals affirmance are 39

48 erroneous and should be reversed. The case should be remanded and Burnett s Complaint reinstated. RESPECTFULLY SUBMITTED this 23 rd day of December, LAW FIRM OF ALAN G. MOLK /s/ Alan G. Molk Alan G. Molk THE FOWLER LAW FIRM, LLC /s/ Timms R. Fowler Timms R. Fowler 40

49 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 23 rd day of December, 2013, the foregoing PETITIONER S OPENING BRIEF was filed with the Court and served via ICCES to the following: Kathleen L. Spalding Senior Assistant Attorney General Colorado Department of Law Civil Litigation and Employment Law Ralph L. Carr Colorado Judicial Center 1300 Broadway, 10 th Floor Denver, CO Attorneys for Respondent John F. Poor LAW OFFICES OF JOHN F. POOR 5350 South Roslyn St., Ste. 460 Greenwood Village, CO Attorneys for Amicus Curiae Colorado Trial Lawyers Assoc. /s/ Beth K. Heuer Beth K. Heuer Pursuant to C.A.R. 30(f), this document with original signatures will be maintained by the filing party and made available for inspection by other parties or the Court upon request. 41

50 APPENDICES 1. Photos of Cherry Creek State Park Campsite No. 14 and trees 2. Burnett v. State, 2013 COA 42, 2013 WL , P.3d (Colo. App. 2013) 3. C.R.S C.R.S

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